Supreme Court of the United States - Social Justice Collaborative

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in compliance with Holland v. Florida, in so ..... them, was not an attorney and assisted the Petitioners ... immigratio
No. _________ ================================================================

In The

Supreme Court of the United States -----------------------------------------------------------------JUAN PEREZ PABLO, TOMASA CALMO CARRILLO, ROLANDO PEREZ CALMO, LEOVEL PEREZ CALMO, AND HERLINDA PEREZ CALMO, Petitioners, v. JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL, UNITED STATES DEPARTMENT OF JUSTICE, Respondent. -----------------------------------------------------------------On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit -----------------------------------------------------------------PETITION FOR WRIT OF CERTIORARI -----------------------------------------------------------------GAUTAM JAGANNATH Counsel of Record EMILY ABRAHAM NELSON IBARRA SARAH LONDER GEORGE MACDONALD STEPHANY ARZAGA SOCIAL JUSTICE COLLABORATIVE 420 3rd Street, Suite 130 Oakland, CA 94607 (o) 510.992.3964 (f ) 510.255.5200 (e) gautam@ socialjusticecollaborative.org

NATIONAL LAWYERS GUILD SAN FRANCISCO BAY AREA CHAPTER 558 Capp Street San Francisco, CA 94110 ROSA GOMEZ GOMEZ & DOUAT, LLP 644 40th Street, Suite 209 Oakland, CA 94609

Counsel for Petitioners Juan Perez Pablo, Tomasa Calmo Carrillo, Rolando Perez Calmo, Leovel Perez Calmo, and Herlinda Perez Calmo ================================================================

i QUESTION PRESENTED The Petitioners are a husband, wife, and their three children, who were deported after failing to appear at their removal hearing due to a hurricane which hit their Florida town. Their prior counsel not only misadvised them about the availability of a motion to reopen but discouraged and frightened them from taking any affirmative steps to remedy the situation. Years later with new counsel, Petitioners discovered that prior counsel had been ineffective causing prejudice to their case. The Circuit Courts of Appeals have applied myriad rules around the late filing of motions to reopen, some requiring that unsuspecting petitioners act diligently even when they are victims of fraud, and others requiring that petitioners demonstrate diligence in remedying the fraud only upon its discovery. This deep circuit split must be rectified with a uniform standard in compliance with Holland v. Florida, in so far as Holland holds that equitable tolling must be flexible in order to relieve real hardships that would result in travesties of justice. The question presented is: What is the standard for due diligence for equitably tolling late filed motions to reopen where a noncitizen suffered from ineffective assistance of Counsel? The First, Second and Eighth Circuits require diligence throughout the entire period to be tolled, while the Third, Sixth, Seventh and Ninth have a facts-andcircumstances-based approach to due diligence.

ii PARTIES TO THE PROCEEDING Petitioners are Mr. Juan Perez Pablo, his wife Ms. Tomasa Calmo Carrillo and their children, Rolando, Leovel and Herlinda Perez Calmo. Respondent is the United States of America. There are no parties to the proceeding other than those listed in the caption.

iii TABLE OF CONTENTS Page QUESTION PRESENTED...................................

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PARTIES TO THE PROCEEDING ......................

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TABLE OF CONTENTS ......................................

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TABLE OF AUTHORITIES .................................

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OPINIONS BELOW.............................................

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JURISDICTION ...................................................

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STATUTORY PROVISION INVOLVED ..............

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INTRODUCTION ................................................

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STATEMENT .......................................................

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1.

The Circuit Courts of Appeals have long held that the filing deadlines for motions to reopen are subject to equitable tolling in situations of ineffective assistance of counsel .......................................................

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Due diligence is required in order to invoke equitable tolling in the context of motions to reopen ...........................................

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Mr. Perez Pablo and his wife Tomasa Calmo Carrillo acted with reasonable diligence when pursuing their motion to reopen considering the totality of the circumstances ................................................

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REASONS FOR GRANTING THIS PETITION ....

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3.

I.

THE COURT SHOULD GRANT THIS PETITION TO RESOLVE A DEEP CONFLICT BETWEEN THE CIRCUITS .........

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iv TABLE OF CONTENTS – Continued Page 1. There is no uniform holding in Circuits on what is required to show due diligence when utilizing equitable tolling in situations of ineffective assistance of counsel ............................... 10 A. The First, Second, and Eighth Circuits agree that due diligence must be exercised during the entire period sought to be tolled, even before the petitioner learns about the ineffective assistance of counsel ........ 11 B. The Third, Sixth, Seventh, and Ninth Circuits agree that a petitioner must exercise due diligence once she learns, or should have learned, of the ineffective assistance of counsel, but not prior ........ 14 2. The Supreme Court should create a rule that is consistent with prior precedent relating to the meaning of due diligence in ineffective assistance of counsel cases ....................................... 17 3. Civil proceedings also recognize equitable tolling when due diligence is exercised after fraud or wrongdoing is discovered ............................................ 23

v TABLE OF CONTENTS – Continued Page 4. Thousands of noncitizens each year suffer the consequences of ineffective assistance of counsel which results in erroneous removal without clear guidance ...................................................... 25 CONCLUSION..................................................... 28 APPENDIX United States Court of Appeals for the Eleventh Circuit, Opinion, April 7, 2017......................... App. 1 U.S. Department of Justice Board of Immigration Appeals, Decision, April 12, 2016 ............. App. 6 United States Immigration Court, Order, October 1, 2015 ...................................................... App. 10

vi TABLE OF AUTHORITIES Page CASES Akwada v. Ashcroft, 113 Fed. Appx. 532 (4th Cir. 2004) ........................................................................14 Avagyan v. Holder, 646 F.3d 672 (9th Cir. 2011) .......16 Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357 (11th Cir. 2013)..........................................................6 Borges v. Gonzales, 402 F.3d 398 (3d Cir. 2005) ..... 6, 16 Chaidez v. United States, 568 U.S. 342 (2013) ...........18 Chedid v. Holder, 573 F.3d 33 (1st Cir. 2009) ............12 Dawoud v. Holder, 561 F.3d 31 (1st Cir. 2009) ..........13 Fong Haw Tan v. Phelan, 333 U.S. 6 (1948) ...............18 Harchenko v. INS, 379 F.3d 405 (6th Cir. 2004) ..........6 Holland v. Florida, 560 U.S. 631 (2010) ............. passim Holmberg v. Armbrecht, 327 U.S. 392 (1946) .............24 Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000) ................6 Kuusk v. Holder, 732 F.3d 302 (4th Cir. 2013) .............6 Lee v. United States, 582 U.S. ___ (2017) ...................18 Matter of Lozada, 19 I&N Dec. 637 (BIA 1988) ...........5 McQuiggin v. Perkins, 133 S. Ct. 1924 (2013) .... passim Mezo v. Holder, 615 F.3d 616 (6th Cir. 2007) .............15 Neves v. Holder, 613 F.3d 30 (1st Cir. 2010) ...............12 Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010) ................................................................18 Pafe v. Holder, 615 F.3d 967 (8th Cir. 2010) ......... 11, 12

vii TABLE OF AUTHORITIES – Continued Page Pervaiz v. Gonzales, 405 F.3d 488 (7th Cir. 2005) ... 6, 15 Powell v. Alabama, 287 U.S. 45 (1932) .......................17 Rashid v. Mukasey, 533 F.3d 127 (2d Cir. 2008) ........13 Riley v. INS, 310 F.3d 1253 (10th Cir. 2002) ................6 Rodriguez-Lariz v. INS, 282 F.3d 1218 (9th Cir. 2002) ........................................................................17 Rouse v. Lee, 339 F.3d 238 (4th Cir. 2003) ..................14 Socop-Gonzalez v. INS, 272 F.3d 1176 (9th Cir. 2001) ..........................................................................6 STATUTES 8 U.S.C. § 1229a(b)(5)(C)(i) ...........................................1 28 U.S.C. § 1254(1) ........................................................1 RULES AND REGULATIONS 8 C.F.R. § 1208.17 .......................................................23 8 C.F.R. § 1003.23(b) .....................................................5 8 C.F.R. § 1003.23(b)(4)(ii) ............................................5 Sup. Ct. R. 10(a) ..........................................................10 Sup. Ct. R. 10(c) .................................................... 19, 25

viii TABLE OF AUTHORITIES – Continued Page OTHER AUTHORITIES Fred C. Zacharias, The Myth of Self-Regulation, 93 Minn. L. Rev. 1147 (2009) ..................................26 FY 2015 Statistics Yearbook, Office of Communications and Legislative Affairs (2016), https:// www.justice.gov/eoir/page/file/fysb15/download .......25 Jean Pierre Espinoza, Ineffective Assistance of Counsel in Removal Proceedings: ‘Matter of Compean and the Fundamental Fairness Doctrine’, 22 Fla. J. Int’l L. 65 (2010) ..................... 18, 27

1 OPINIONS BELOW The opinion of the United States Court of Appeals for the Eleventh Circuit dated April 7, 2017, App. 1, is not reported. The opinion of the Board of Immigration Appeals dismissing appeal, dated April 12, 2016, App. 6, is not reported. The order of the Immigration Judge denying the motion to reopen, dated October 1, 2015, is not reported. App. 10. ------------------------------------------------------------------

JURISDICTION The judgment of the court of appeals was entered on April 7, 2017. App 1. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1). ------------------------------------------------------------------

STATUTORY PROVISION INVOLVED Section 240(b)(5)(C)(i) of the Immigration and Nationality Act which arose under the Amendments to the Immigration and Nationality Act, is codified as 8 U.S.C. § 1229a(b)(5)(C)(i). ------------------------------------------------------------------

INTRODUCTION Mr. Juan Perez Pablo (“Mr. Perez Pablo”), his wife, Tomasa Calmo Carrillo (“Ms. Calmo Carrillo”), and their three children Rolando, Leovel, and Herlinda Perez Calmo (collectively “Petitioners”), are natives and citizens of Guatemala, who fled Guatemala around

2 2003 as refugees. The Petitioners are indigenous Mayan and speak only a Mayan dialect called Mam. They hired an immigration consultant, who, unbeknownst to them, was not an attorney and assisted the Petitioners in filing applications for asylum. They were placed in removal proceedings. One or more of the Petitioners attended court hearings in Miami, Florida several times between 2000-2004 and were scheduled to return to court for a subsequent master calendar hearing when a hurricane hit the Petitioners’ town and surrounding area of Martin County in Florida on the day before another status hearing on September 14, 2004. Petitioners contacted their presumed counsel who told them that he was leaving town due to the hurricane and not to do anything. The hurricane was so severe that Petitioners were forced to evacuate and stay in a church for three days. The hurricane eliminated power and water in the area, flooded the streets, closed gas stations, and badly damaged Petitioners’ home. When the hurricane subsided, Petitioners went to the office of their “attorney” but he was not to be found. They received a letter in the mail from the Immigration Court a few weeks later, but could not read it, so they brought it to their attorney. He informed them it was a hearing notice and to meet the following day so they could attend court together. However, when they went to his office the following day he said the notice was actually a deportation order and they could not do anything. He told the Petitioners that they would be

3 deported if they went to court and that there was nothing they could do now. Out of fear of deportation, and heeding “counsel’s” advice, Petitioners did nothing for approximately ten years. Only in 2013 did they finally speak to a teacher in regards to their children’s undocumented status, and he encouraged them to seek legal advice. In 2014, they sought out assistance from an attorney in Berkeley, California who refused to help them reopen their case but offered to get them work authorization. Eventually, Petitioners were referred to a legal services nonprofit organization, Social Justice Collaborative, with immigration lawyers and sought advice and representation immediately. At that point, Counsel discovered that the Petitioners had been victims of a fraudster who was posing as an attorney, but who was only a notary public. In addition, Petitioners learned that they would have been able to reopen their case had they done so soon after the hurricane had subsided, but for the prior counsel’s advice to the contrary. Upon learning of the prior counsel’s fraud and malpractice, Petitioners swiftly filed a motion to reopen. Counsel tried to work with the Miami Office of Chief Counsel to work out an outcome, but none was negotiated, and the motion was filed. A few days after the motion was filed, and before the Government could respond, the Immigration Judge denied the motion. The Board of Immigration Appeals (“BIA” or “Board”) dismissed the appeal, and the Eleventh Circuit Court of Appeals affirmed, finding that the Petitioners did

4 not act diligently in reopening their case, despite being victims of highly deficient counsel. This case is about the level of due diligence required to reopen a removal case in the face of ineffective assistance of counsel in immigration proceedings. Petitioners were given detrimental advice from a fraudster posing as an attorney, and as a direct consequence, Petitioners did “nothing” for approximately ten years until they discovered that they had been the victims of fraud. As Guatemalan refugees with no English (or Spanish) proficiency, they were highly susceptible to ineffective assistance of counsel and had no means of discovering it on their own or even suspecting that they had been given bad advice. In fact, it was the bad advice that affirmatively prevented them from taking any steps to seek redress. Petitioners should not be punished for the misdeeds of their prior counsel. Our law provides equitable remedies to procedural defaults in just such situations where egregious travesties of justice would ensue. Indeed, when Petitioners learned of the fraud they experienced by subsequent Counsel, they promptly sought reopening of their removal proceeding. Even considering that the Petitioners delayed for many years, they had no way of knowing that they had been victims of serious malpractice. ------------------------------------------------------------------

5 STATEMENT 1.

The Circuit Courts of Appeals have long held that the filing deadlines for motions to reopen are subject to equitable tolling in situations of ineffective assistance of counsel

Noncitizens who have been ordered removed generally have ninety days to file motions to reopen. 8 U.S.C. § 1229a(b)(5)(C)(i); 8 C.F.R. § 1003.23(b). When noncitizens are ordered removed in absentia, they have one-hundred eighty days to file their motion to reopen if they can prove that the failure to appear was due to extraordinary circumstances. 8 C.F.R. § 1003.23(b)(4)(ii). In 1988, the BIA held that ineffective assistance of counsel could qualify as an extraordinary circumstance justifying reopening of removal proceedings, finding that ineffectiveness of counsel was a violation of due process. Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). This seminal Board decision gave a framework for preparing and adjudicating motions to reopen based on ineffective assistance of counsel, requiring certain procedural steps to be followed prior to the filing of the motion, as well as requiring the noncitizen to show both that the counsel’s assistance was deficient and that the deficiency caused prejudice. However, Lozada did nothing to address the strict deadlines for reopening removal proceedings. Instead, the circuit courts of appeals have been tackling this issue ever since, asking themselves whether noncitizens who fall victims to deficient counsel are still

6 required to file motions to reopen within the obligatory ninety or one-hundred eighty days, or whether tolling should entitle them to additional time as a result of experiencing direct harm. Slowly, the majority of the circuit courts of appeals came to an agreement that the time limits are nonjurisdictional and therefore subject to equitable tolling based on ineffective assistance of counsel. See Iavorski v. INS, 232 F.3d 124, 129-30 (2d Cir. 2000); Borges v. Gonzales, 402 F.3d 398 (3d Cir. 2005); Kuusk v. Holder, 732 F.3d 302 (4th Cir. 2013); Harchenko v. INS, 379 F.3d 405, 409-10 (6th Cir. 2004); Pervaiz v. Gonzales, 405 F.3d 488 (7th Cir. 2005); Socop-Gonzalez v. INS, 272 F.3d 1176, 1188 (9th Cir. 2001) (en banc); Riley v. INS, 310 F.3d 1253, 1258 (10th Cir. 2002); AvilaSantoyo v. U.S. Att’y Gen., 713 F.3d 1357, 1362-65 & n.4 (11th Cir. 2013) (en banc). Even with agreements among the circuits on the issue of equitable tolling, the circuits have left noncitizens in a quagmire of laws regarding the procedural requirements of applying equitable tolling. This deep circuit split is the subject of the instant certiorari petition. 2.

Due diligence is required in order to invoke equitable tolling in the context of motions to reopen

Those Circuits that have applied equitable tolling to motions to reopen based on ineffective assistance of counsel have required that petitioners demonstrate

7 they acted with “due diligence.” See supra. While every court of appeal has found that some diligence is required, courts have interpreted the requirement differently, applying their own standards to explain diligence. While noncitizens in some circuits may find the standard provable, others will find it an insurmountable barrier. This causes injustice and inequity in a federal immigration system which should be uniform among all immigration courts regardless of jurisdiction. While some courts require that a petitioner act diligently during the entire period that she seeks to toll, other courts only require that a petitioner act diligently once the fraud or deficiency is discovered. The former requires the noncitizen to actively discover the fraud or deficient performance, and then act diligently in seeking new counsel and filing the motion to reopen. The latter requires the noncitizen to act diligently upon discovering the deficient performance, and then also in filing the motion to reopen. While noncitizens in immigration proceedings should be required to act diligently after discovering the fraud or deficiency of their former counsel, they should not be required to act diligently when they are unaware that their counsel is ineffective. This would place too high a burden on noncitizens who are often uneducated or lack the resources to investigate counsel’s performance, particularly given the fact that the immigration laws are some of the most complex in the nation.

8 3.

Mr. Perez Pablo and his wife Tomasa Calmo Carrillo acted with reasonable diligence when pursuing their motion to reopen considering the totality of the circumstances

When considering whether a petitioner acts diligently, this Court should consider personal circumstances and what a reasonable person in the situation would have done. The standard should be enshrined in the facts and circumstances, a contextual analysis that comports with prior precedent of this Court. Enforcing a harsh standard that requires individuals to have advanced domain understanding of the area of law is unreasonable and unfair and does not comport with the expectation that competent counsel will help noncitizens navigate through complex immigration law. Here, the Petitioners were attempting to pursue their case diligently, and but for the Florida hurricane, they would have gone to their court date, as they had attended in prior occasions. They reached out to their prior counsel on various occasions, including before and after their missed court date. After they received a deportation order, they consulted with him and at that point they received misinformation about a potential remedy. Believing their prior counsel’s word that nothing could be done in their case, Petitioners knew no better and took no further action. They could not possibly have known that they could have filed a motion to reopen, alleging extraordinary circumstances, or taken any other affirmative step to undo the damage already done. They had logically placed trust and confidence in their attorney’s understanding of their

9 options. Had they known immigration law extensively, they may not have needed to hire counsel in the first place and would not have been misled. Petitioners are, during all periods of time, indigenous Mayans from Guatemala who only speak the Mam language. They were not knowledgeable about immigration law, or the availability of a motion to reopen, and did not even know that their prior counsel was ineffective until they later received new advice from a legal services nonprofit. There is no possible way that the Petitioners could have discovered the ineffective assistance to which they were subjected. Because our standard of ineffective assistance of counsel takes into account various factors, it is important that due diligence be interpreted within the specific factual circumstances. When the actual ineffective assistance works to undermine the noncitizen’s ability to take corrective action, and the noncitizen had a reasonable belief that they had exhausted all immigration avenues, judges should be permitted to find that the due diligence prong was met. ------------------------------------------------------------------

REASONS FOR GRANTING THIS PETITION I.

THE COURT SHOULD GRANT THIS PETITION TO RESOLVE A DEEP CONFLICT BETWEEN THE CIRCUITS

The Supreme Court prioritizes the acceptance of certiorari petitions when United States Courts of Appeals have entered decisions in conflict with each

10 other. Sup. Ct. R. 10(a). Here, there is a deep split among the circuit courts for the matter at issue. 1. There is no uniform holding in Circuits on what is required to show due diligence when utilizing equitable tolling in situations of ineffective assistance of counsel Without guidance from the Supreme Court regarding motions to reopen when petitioners have suffered from ineffective assistance of counsel, the Circuit Courts of Appeals have come up with a variety of tests, factors, and bright-line rules. These tests have created fractured immigration laws instead of a uniform procedure to be applied justly and evenly across the nation. Almost all of the Circuit Courts of Appeals do, at minimum, recognize that equitable tolling applies to motions to reopen, particularly where there is a claim of ineffective assistance of counsel. However, the Courts are split on how to analyze those claims, particularly where counsel is so deficient or engaged in concealment or fraud. In those situations, the Courts must agree that petitioners, who often do not even realize that they are being duped, should be required to exercise due diligence only after they discovered, or should have discovered, the fraud, misadvice or deficiency. So far, most courts have fallen within two different camps: those that require petitioners to exercise due diligence during the entire period of time that they

11 wish to have tolled, including in order to discover the ineffective assistance, and those that require that the petitioners demonstrate diligence once they learned, or should have learned, of the ineffectiveness of prior counsel. A. The First, Second, and Eighth Circuits agree that due diligence must be exercised during the entire period sought to be tolled, even before the petitioner learns about the ineffective assistance of counsel Several Courts of Appeals have agreed that petitioners must assert their rights diligently, even when they are unaware that they were victims of ineffective assistance of counsel. This puts a heavy burden on the uneducated petitioner who was not on notice that the person she hired was either deficient or even, in some cases, a complete fraud. The Eighth Circuit’s Pafe case is enlightening in terms of this camp’s formulation of equitable tolling. Pafe v. Holder, 615 F.3d 967 (8th Cir. 2010). In Pafe, the petitioner was told by her prior counsel that she did not need to go to court, and she was removed in absentia. Her counsel then promised to file a motion to reopen, but did not. Petitioner inquired with his office and learned he would be moving out of the country. At that point, she sought new counsel who again assured her he would promptly file a motion to reopen. Despite reliance on this second attorney’s representations, he did

12 not file the motion. Finally, the noncitizen in Pafe hired a third attorney who did file the motion, but the court declined to equitably toll because of the petitioner’s lack of due diligence. The Eighth Circuit found that she lacked due diligence, even acknowledging that she had been the victim of ineffective assistance of counsel. The court found that petitioners must exercise due diligence in discovering ineffective assistance of counsel – even where counsel was deceptive or acted fraudulently. Id. The noncitizen in Pafe apparently was not fast enough in discovering her first two attorneys’ deficient behavior. In Pafe, Circuit Judge Bright dissented, arguing that the Supreme Court’s precedent in Holland v. Florida should sway towards reopening the case. Id. at 970. The dissent found that the appellant in Pafe had been given “terrible advice, misleading and false information, and obvious misconduct by licensed attorneys.” Id. The dissent argued that there was no way the petitioner could have known that she was being lied to by her counsel and she could not have acted sooner than she did. The First Circuit has agreed with the Pafe majority, “a party seeking equitable tolling must have diligently pursued his rights for the entire period he seeks tolled, not merely once he discovers the underlying circumstances warranting tolling.” Neves v. Holder, 613 F.3d 30, 36 (1st Cir. 2010). This Circuit has made it nearly impossible to prove due diligence. See Chedid v. Holder, 573 F.3d 33, 37 (1st Cir. 2009) (working for a

13 year to find reputable counsel after suffering grievous legal injury did not meet the standard for due diligence); Dawoud v. Holder, 561 F.3d 31, 36 (1st Cir. 2009) (“equitable tolling is a sparingly invoked doctrine.”). By requiring due diligence during the entire period, petitioners who are unable to discover their counsel’s deficiency are largely unable to remedy the situation they are not responsible for. The Second Circuit also employs a nearly impossible standard, finding that a petitioner must exercise due diligence during the entire period she seeks to toll, “this includes both the period of time before the ineffective assistance of counsel was or should have been discovered and the period from that point until the motion to reopen is filed.” Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008). Even though the Second Circuit recognized that immigration petitioners are largely unfamiliar with immigration law, it still held that they should be expected to know that their counsel is ineffective, even without being told so by another attorney. Id. at n.3. The Second Circuit therefore also places a heavy burden on petitioners to not only act diligently but also figure out that they are being duped by immigration fraudsters or otherwise ineffective counsel. The end result is a standard that requires lay noncitizens to rise to the intellectual occasion of an immigration attorney – to self-advocate and represent themselves in a manner that is wholly unreasonable to expect.

14 Although the Fourth Circuit does not have a published case on point, it is interesting to see how strict their unpublished decisions have been, which are in line with the other circuits of this camp. In Akwada v. Ashcroft, an unpublished case from 2004, the Fourth Circuit emphasized its “gross injustice” standard, but said it was nearly impossible to meet that standard. 113 Fed. Appx. 532, 539 (4th Cir. 2004) (unpub.), citing to Rouse v. Lee, 339 F.3d 238 (4th Cir. 2003). The court wrote that it had declined to equitably toll in extremely factually compelling circumstances, citing to Rouse, a death penalty case where the Court held that counsel’s error in filing a habeas petition one day late did not constitute an exceptional circumstance that warranted equitable tolling. Id. Therefore, the equitable tolling rule does not seem to protect gross miscarriages of justice in the Fourth Circuit as well. B. The Third, Sixth, Seventh, and Ninth Circuits agree that a petitioner must exercise due diligence once she learns, or should have learned, of the ineffective assistance of counsel, but not prior The Third, Sixth, Seventh, and the Ninth Circuits employ more fact-driven inquiries when deciding to apply equitable tolling in cases of ineffective assistance of counsel. These cases are in line with this Court’s decision in Holland and the concept of reasonable diligence required for equitable tolling. See Holland v. Florida, 560 U.S. 631 (2010).

15 These circuits use tests that take into consideration how ineffective assistance of counsel actually affects petitioners’ abilities to act diligently. Notably, the Sixth Circuit found that a petitioner could still be diligent even though she relied on counsel’s representations that her appeal would be filed on time. Mezo v. Holder, 615 F.3d 616 (6th Cir. 2007). The Sixth Circuit employs a five-part test to decide whether a petitioner should be eligible for equitable tolling, due diligence being one of the five factors.1 The Sixth Circuit permits equitable tolling for petitioners as long as they are diligent once they discover the harm suffered by ineffective assistance. The Seventh Circuit explained it simply in Pervaiz, “the test for equitable tolling, both generally and in the immigration context, is not the length of the delay in filing the complaint or other pleading; it is whether the claimant could reasonably have been expected to have filed earlier.” Pervaiz v. Gonzales, 405 F.3d 488 (7th Cir. 2005). The Seventh Circuit recognized that for a petitioner to act diligently, he must find a new lawyer, the lawyer would need to research the facts and law, and that the process often takes a very long time. Id. at 491. Reasonableness of the delay is a large part of the inquiry, and the Seventh Circuit takes into consideration that noncitizens may not have the 1

“(1) the petitioner’s lack of notice of the filing requirement; (2) the petitioner’s lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one’s rights; (4) absence of prejudice to the respondent; and (5) the petitioner’s reasonableness in remaining ignorant of the legal requirement for filing his claim.” Mezo, 615 F.3d at 620.

16 requisite knowledge to know that they have been defrauded by their attorney. The Ninth Circuit also employs a fact-andcircumstance-based approach, recognizing that it would be unjust to penalize individuals who reasonably rely on advice of counsel, “even if that counsel turns out to be incompetent or predatory.” Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011). Inquiries into due diligence should be fact-specific, according to the Ninth Circuit, and to that end it has employed a three-factor approach that takes into account those petitioners who were unaware that they had been victims of fraud or error from deficient counsel.2 Id. Clearly, the Ninth Circuit approach also recognizes that the inquiry into due diligence is a complex one that requires consideration of several factors, as well as reasonability. Like the Sixth, Seventh, and Ninth, the Third Circuit recognizes that a petitioner may be unable to file a timely motion when he is unaware that he is the victim of ineffective assistance of counsel. Borges v. Gonzales, 402 F.3d 398, 405 (3d Cir. 2005). In Borges, the petitioner filed his motion five years late because that is when he learned of the fraud of his former counsel. 2

The test is 1) whether and when a reasonable person in petitioner’s situation would suspect the fraud or error from the deficient counsel, 2) whether the petitioner took reasonable steps to investigate the fraud or error, or in the case where petitioner is unaware of the deficiency, whether the petitioner made reasonable efforts to pursue relief, and 3) when the petitioner definitely learns of the harm resulting from counsel’s deficiency. See Avagyan, 646 F.3d at 697.

17 The Third Circuit thus found that equitable tolling could be successfully invoked in order to forgive the late filing. Late filing is excusable in the Third Circuit if there is a reason for the delay, connected to the ineffective assistance of counsel. Similarly, where petitioners were unfamiliar with the administrative process and relied on their representative to protect them, the Ninth Circuit has been unwilling to find a lack of due diligence, particularly when they were beguiled by fraudulent counsel. See Rodriguez-Lariz v. INS, 282 F.3d 1218, 1225 (9th Cir. 2002) (that would “contradict the very basis for providing equitable relief.”). Because of the myriad of laws among the circuits, the Supreme Court should resolve the circuit split. Otherwise, we risk having a fractured federal immigration system. 2. The Supreme Court should create a rule that is consistent with prior precedent relating to the meaning of due diligence in ineffective assistance of counsel cases Since the early 20th century, this Court has had to confront the meaning of “effective counsel” in proceedings where there is a disparate level of literacy, understanding and wherewithal between parties. See, e.g., Powell v. Alabama, 287 U.S. 45 (1932). Although there is no appointment of Counsel at the government’s expense in deportation proceedings, this Court has been privy to the lasting and detrimental consequences of

18 deportation, especially erroneous deportation. Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948). In light of this, this Court should consider the meaning of how “due diligence” comports with ineffective counsel. Circuits are clearly split on how individual noncitizens should react to the lack of effectiveness of their attorneys, i.e., their “due diligence.” But the reality is that, like criminal defendants, noncitizens are often completely lacking in self-advocacy.3 This Court has not been inclined to impose punitive rules in the criminal context and those rules should not exist in immigration proceedings either. Ineffective assistance of counsel is a concept that has grown out of criminal law precedent but as this Court demonstrated, has applications in immigration law. Most recently, this Court in Lee v. United States reaffirmed Strickland’s application in ineffective assistance of counsel for immigration matters. 582 U.S. ___ (2017). See also, Chaidez v. United States, 568 U.S. 342 (2013). This Court found previously in Padilla v. Commonwealth of Kentucky that ineffective assistance applies in cases where criminal defense attorneys fail to inform noncitizens of the consequences of crimes in a plea deal, thus applying Strickland to immigration cases. 559 U.S. 356 (2010). It is clear that a criminal standard for ineffective assistance is being applied in a civil, immigration context by this Court. 3

Jean Pierre Espinoza, Ineffective Assistance of Counsel in Removal Proceedings: ‘Matter of Compean and the Fundamental Fairness Doctrine’, 22 Fla. J. Int’l L. 65, 98 (2010).

19 This case before the Court deals with a circumstance in which an illiterate, monolingual indigenous Mayan family was subject to the capricious ill-advice of a fraudster posing as an attorney. Once the clients were prejudiced by the misinformation, they took to hiding which is not an uncommon result for noncitizens who are scared of our legal system and lack the ability to rectify a wrong of which they are unfamiliar. This was done at the suggestion of their prior counsel. In Strickland, the Court did not have an opportunity to grapple with the meaning of “due diligence.” Because there is little clarity on what “due diligence” actually means in the immigration context, it has been unfortunately used to prevent noncitizens from reopening their case in Immigration Court where they did not know they had been suffering ineffective assistance of counsel. This simply does not comport with the state of “due diligence” analysis by this Court. The concept of “due diligence” for equitable tolling was recently looked at in detail by this Court in Holland. 560 U.S. 631 (2010). Later in McQuiggin v. Perkins, this Court considered the question as it pertains to equitable exceptions to non-jurisdictional tolling. 133 S. Ct. 1924 (2013). This Court places importance on granting certiorari when a “United States court of appeals . . . has decided an important federal question in a way that conflicts with relevant decisions of this Court.” Sup. Ct. R. 10(c). The decision of the Eleventh Circuit in the case at hand conflicts with Holland’s conception of due diligence, as well

20 as the procedural default exceptions enshrined in McQuiggin v. Perkins. In Holland, the petitioner had late-filed a habeas claim, and the Eleventh Circuit had upheld the district court’s determination that no tolling applied. The inmate had taken significant steps to reach out to his attorney and work with him in order to timely file the habeas petition. Holland, 560 U.S. at 638-41. The record in that case is clear that the inmate was literate and a good self-advocate, knowledgeable about applicable habeas rules. Id. Because the Eleventh Circuit found that he had not filed timely, this Court found that the “Eleventh circuit’s per se standard is too rigid.” Holland v. Florida, 560 U.S. at 654. Furthermore, “That rule is difficult to reconcile with more general equitable principles in that it fails to recognize that, at least sometimes, an attorney’s unprofessional conduct can be so egregious as to create an extraordinary circumstance warranting equitable tolling, as several other federal courts have specifically held.” Id. at 633. The Court also held that “[t]he diligence required for equitable tolling purposes is ‘reasonable diligence,’ not ‘maximum feasible diligence.’ ” Holland, 560 U.S. at 653 (citations omitted). This is a very important construct because maximum diligence could be construed as tantamount to being an attorney, or substantially the same. The need for effective counsel often becomes more important when the client is incapable of representing himself. If we think about what reasonable diligence means in the instant case, this Court should harmonize Holland to construe due diligence as

21 applied in the context of the ineffective assistance received. For the inmate in Holland, due diligence was that he had made concerted efforts to get in touch with his attorney. In the instant case, the Petitioners did get in touch with their attorney after they had been deported, they made no remedial efforts because their counselor told them there was nothing they could do. The facts in this case point to clear due diligence. Because the attorney’s performance was so deficient, the advice so grossly negligent, that the Petitioners took no further action when they were told that there was nothing they could do after they received their orders of deportation in absentia. To expect somehow that the Petitioners were in a position to adequately vet the level of harm they had experienced at the time they did would be to undermine that they suffered any harm at all – with perfect hindsight, it is easy to judge any individual with a procedural default. The rules should respect that those who are subjected to a default through no fault of their own are given an equitable benefit of the doubt. Holland’s mandate, when read in conjunction with McQuiggin, is that equity permits judges to set aside procedural bars when a meritorious exceptional circumstance presents itself. In Holland, the rule around what “extraordinary circumstances” stand in the way of petitioner’s procedural default cannot be limited to the findings of the Eleventh Circuit, but rather, courts “ ‘exercise [their] equity powers . . . on a case-by-case basis,’ ” Holland, 560 U.S. at 632 (internal citations omitted). Such flexibility permits federal courts to “ ‘demonstrate

22 flexibility,’ avoid ‘mechanical rules’ and ‘relieve hardships.’ ” Id. Such language is also tracked in another important criminal habeas case, McQuiggin v. Perkins, where this Court invoked a “ ‘fundamental miscarriage of justice exception’ ” to “overcome various procedural defaults . . . such as filing deadlines.” 569 U.S. ___, 133 S. Ct. 1924, 1926 (2013). Clearly this Court is skeptical that a firm application of deadlines and rules leads to effective justice. It also makes sense that when there is a strong divergence in capacity between the attorney and client, that the relationship between the two is markedly different. In McQuiggin, the inmate was facing capital punishment – and his innocence defense was the last resort to reprieve. Id. In McQuiggin, this Court grappled to some extent with the concept of what it means to “diligently pursue . . . rights.” 133 S. Ct. at 1928. In order to provide reprieve for a death-row habeas petitioner who pled actual innocence, the Court found that he was entitled to a procedural exception. Id. Thus, time limitations imposed by statute may be tolled based on potential travesties of justice that may flow directly from the limitation. In McQuiggin, the inmate had filed his habeas petition more than eleven years after his conviction was final, and the Eleventh Circuit affirmed that he was not diligent in pursuing his case. 133 S. Ct. at 1929. This Court found that despite this delay, the inmate was eligible for reprieve due to the circumstances of impending capital punishment and his actual innocence, notwithstanding his lack of diligence.

23 This Court should harmonize the due diligence requirements found by the Circuits in immigration cases with that of Holland and McQuiggin in the criminal context. If this Court were to do so, Holland would permit a broader understanding of due diligence in the immigration context, comporting with principles of equity and fairness. The Holland court was particularly concerned with “warrant[ing] special treatment in an appropriate case.” Id. The McQuiggin case would offer a way to overcome such procedural defaults because of a “severe miscarriage of justice” – the inability for a noncitizen to lift a deportation order, apply for any relief eligible, and enjoy the ability to have the application adjudicated to the fullest extent of the law. McQuiggin recognizes that ineffective assistance counsel can pose an enormous impediment, disproportionately affecting undereducated populations, especially noncitizens who are less likely to have English fluency or knowledge of immigration law. It is a perfectly apropos comparison that the inmates in the criminal habeas matters were on death row – many noncitizens, like the Petitioners in the instant case, face death if they are repatriated. See, e.g., 8 C.F.R. § 1208.17 (implementation of Convention Against Torture). 3. Civil proceedings also recognize equitable tolling when due diligence is exercised after fraud or wrongdoing is discovered This Court has said time and again “[e]quity eschews mechanical rules; it depends on flexibility.”

24 Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946). It is important to understand that “ . . . equitable doctrine is read into every federal statute of limitation,” Id. at 397. A mechanical implementation of due diligence leads to propagation of more rules that do injustice to reasonable and deserving individuals. Holland reiterates that rules of equity apply to procedural defaults – and even it has been noted that “the doctrine of equitable tolling is centuries old.” McQuiggin, 1333 S. Ct. at 1941 (Scalia, J., dissenting). Holland and McQuiggin are part of a line of age old cases that confer upon judges the right to rectify egregious wrongs. The Ninth, Seventh and Sixth Circuits are already applying rules that comport to the Holland mandate – but in the absence of judicial freedom to apply equitable principles, well-intentioned and deserving noncitizens lose once-in-a-lifetime opportunities to present claims. The First, Second, and Eighth Circuits are constrained to implement a rule of due diligence where constructively no claim of ineffective counsel can be laid which may result in an outcome that favors the noncitizen. The First, Second, and Eighth Circuits find a clear lack of a mandate from this Court that they are permitted to apply traditional rules of equity, as seen in Holland and McQuiggin and related cases, that have been applied involving interpretation of non-jurisdictional procedural bars.

25 4. Thousands of noncitizens each year suffer the consequences of ineffective assistance of counsel which results in erroneous removal without clear guidance This Court should also grant certiorari because this is “an important question of federal law that has not been, but should be, settled by this Court.” Sup. Ct. R. 10(c). The question of tolling in motions to reopen is a very serious and important question of federal law because it affects many noncitizens, especially those who are deported in absentia by immigration judges. Despite clear rules, immigration attorneys and fraudsters posing as attorneys continue to give ill-advice about appearance in court, which leads to failure to appear. The Executive Office of Immigration Review (the Agency Immigration Court), has found that in absentia rates are increasing, and in 2015 they represented 27% of initial completed cases.4 This number has increased over the years.5 In absentia orders are maintained regardless of the reason for the noncitizen’s failure to appear – unless a motion to reopen is filed. Because noncitizens must make an affirmative step of filing such a motion, many such individuals are irreparably prejudiced, particularly in cases such as this where petitioners are misadvised about the availability of a remedy. Worse, there is no rational reason 4 FY 2015 Statistics Yearbook, Office of Communications and Legislative Affairs (2016), https://www.justice.gov/eoir/page/file/ fysb15/download. 5 Id.

26 to maintain these in absentia orders on the books when noncitizens’ ability to be diligent is hampered by ineffective counsel. The fact of the matter is that many noncitizens, especially illiterate, non-English speaking monolingual noncitizens, are disproportionately affected by a rule that favors overwhelming educated, self-advocating individuals who are competent in English and able to converse with their attorneys on an intellectual level. In many of the cases in which circuit courts found due diligence, the individuals (both inmates and noncitizens) were well-informed, articulate and were people of means in terms of their communication prowess and ability to confront their own problems. See, e.g., Holland, 560 U.S. at 639-41. Our judicial system does not exist for any single socioeconomic class, nor did Congress ever envision these rules to be applied discriminately. The reality with ineffective assistance of counsel is that the extraordinary circumstance is also the reason why the noncitizen is unable under an onerous standard to meet the requirement of pursuing rights diligently. Because of the nature of how immigration law operates, when ineffective assistance results in a deportation order, noncitizens are not likely to be knowledgeable at the time they suffered the deficiency of counsel. Equitable tolling also protects attorneys as a selfregulating profession.6 Without a proper application of 6

Fred C. Zacharias, The Myth of Self-Regulation, 93 Minn. L. Rev. 1147, 1148 (2009).

27 equitable principles to immigration matters, we leave judges bereft of tools they need to correct the egregious wrongs of unscrupulous attorneys, or those engaged in unauthorized practice of law. We leave a highly important area of federal law devoid of protection from highly consequential malpractice. If we deprive immigration law of such equitable tools, this Court assists attorneys engaging in wrongdoing. Attorneys who fall below basic ethical standards end up getting off scotfree because their conduct leads their clients to certain deportation – resulting in the inability of a disciplinary authority to find wrongdoing when the standards for ineffective assistance of counsel are stacked against noncitizens. Malpractice among immigration attorneys and “immigration consultants” is rampant.7 Unsuspecting noncitizens are frequently misled by attorneys or those posing as attorneys, causing irreparable damage to their immigration cases. With rigid rules regarding filing deadlines, noncitizens are left with little to no ability to remedy their situations. There is simply no reason to maintain erroneous deportation orders – it serves no public interest, and threatens the stability of rule of law. ------------------------------------------------------------------

7

Jean Pierre Espinoza, Ineffective Assistance of Counsel in Removal Proceedings: ‘Matter of Compean and the Fundamental Fairness Doctrine’, 22 Fla. J. Int’l L. 65, 105 (2010)

28 CONCLUSION For the foregoing reasons, the petition for a writ of certiorari should be granted. Respectfully submitted, GAUTAM JAGANNATH Counsel of Record EMILY ABRAHAM NELSON IBARRA SARAH LONDER GEORGE MACDONALD STEPHANY ARZAGA SOCIAL JUSTICE COLLABORATIVE 420 3rd Street, Suite 130 Oakland, CA 94607 (o) 510.992.3964 (f ) 510.255.5200 (e) [email protected]

App. 1 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT -----------------------------------------------------------------------

No. 16-12253 Non-Argument Calendar -----------------------------------------------------------------------

Agency No. A097-625-806 JUAN PEREZ-PABLO, TOMASA CALMO-CARRILLO, ROLANDO PEREZ-CALMO, LEOVEL PEREZ-CALMO, HERLINDA PEREZ-CALMO, Petitioners, versus U.S. ATTORNEY GENERAL, Respondent. -----------------------------------------------------------------------

Petition for Review of a Decision of the Board of Immigration Appeals -----------------------------------------------------------------------

(April 7, 2017) Before JORDAN, ROSENBAUM, and ANDERSON, Circuit Judges. PER CURIAM: Juan Perez-Pablo, Tomasa Calmo-Carrillo, Rolando Perez-Calmo, Leovel Perez-Calmo, and

App. 2 Herlinda Perez-Calmo (“the petitioners”), proceeding with counsel, seek review of the Board of Immigration Appeals’ (“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of their motion to reopen in absentia removal proceedings, pursuant to the Immigration and Nationality Act (“INA”) § 240(b)(5)(C), 8 U.S.C. § 1229a(b)(5)(C). On appeal, the petitioners argue that the BIA abused its discretion in affirming the IJ’s denial of the petitioners’ motion to reopen, where they submitted sworn affidavits and an article establishing that a hurricane prevented their appearance at the September 14, 2004, removal hearing, and where, despite their attorney’s specific instruction to avoid their case, they exercised due diligence in pursuing their case by seeking counsel immediately after the hurricane had passed. The petitioners also argue that the BIA abused its discretion in affirming the IJ’s declination to equitably toll the 180-day filing deadline due to their failure to diligently pursue their case, where they pursued their rights diligently, but were held back due to the hurricane’s wreckage and their attorney’s ineffective assistance of counsel, which were both extraordinary circumstances out of their control. We review the BIA’s decision as the final judgment, unless and to the extent the BIA expressly adopted the IJ’s decision. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). Where the BIA agrees with the IJ’s decision, we review the decisions of both the BIA and the IJ. Id. We will not review issues the BIA declined to address. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). Here, the

App. 3 BIA issued its own decision, but to the extent that the BIA agreed with the IJ’s findings, we review both decisions. Kazemzadeh, 577 F.3d at 1350. We review the denial of a motion to reopen an immigration proceeding for an abuse of discretion, under which we will only determine whether the BIA exercised its discretion arbitrarily or capriciously. Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). The appellant bears a heavy burden in proving arbitrariness or capriciousness because motions to reopen in the context of removal proceedings are particularly disfavored. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). Under INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A), when an alien fails to attend his removal proceeding, he will be ordered removed in absentia so long as he is removable and was provided with written notice of the proceeding. INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A). The alien may only seek rescission of the in absentia removal order by filing a motion to reopen removal proceedings within 180 days after the order of removal was entered, and by demonstrating that he failed to appear due to “extraordinary circumstances.” Jiang, 568 F.3d at 1256; see INA § 240(b)(5)(C)(i), 8 U.S.C. § 1229a(b)(5)(C)(i) (citing “exceptional circumstances”). The INA’s 180-day deadline for filing a motion to reopen an in absentia removal order is a non-jurisdictional claim-processing rule, subject to equitable tolling. Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357, 1362-65 & n.4 (11th Cir. 2013) (en banc). To prevail on an equitable tolling claim, the

App. 4 appellant must show that: (1) he has pursued his rights diligently, and (2) some extraordinary circumstance stood in his way. See id. at 1363 n.5. The BIA did not abuse its discretion by affirming the IJ’s denial of the petitioners’ motion to reopen. The petitioners do not dispute receiving the notice of removal and the in absentia removal order. Because the petitioners did not file their motion to reopen until September 25, 2015, just over 11 years after the IJ’s September 14, 2004, final removal decision, their motion was untimely and they needed to satisfy the equitable tolling requirements. INA § 240(b)(5)(C)(i), 8 U.S.C. § 1229a(b)(5)(C)(i); Jiang, 568 F.3d at 1256; Avila-Santoyo, 713 F.3d at 1362-65 & n.4. The BIA properly affirmed the IJ’s declination to equitably toll the 180-day deadline for the petitioners’ motion to reopen. The BIA did not exercise its discretion in an arbitrary or capricious manner where it reasonably concluded from the evidence that the petitioners did not exercise due diligence in pursuing their rights. Jiang, 568 F.3d at 1256; Zhang, 572 F.3d at 1319. According to Perez-Pablo’s and CalmoCarrillo’s sworn declarations, from the time they consulted Milano in late September 2004 until their move to California in 2014, they specifically avoided contacting either the immigration court or alternative counsel due to their fear of deportation. The record demonstrates no other efforts by the petitioners in pursuing their case prior to 2014. Thus, the BIA was within its discretion to conclude that the petitioners failed to

App. 5 show the requisite diligence for equitable tolling. Avila-Santoyo, 713 F.3d at 1363 n.5. The petitioners also argue that the BIA erred in adopting the IJ’s summary conclusion that they failed to comply with Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), as to their ineffective assistance of counsel argument. However, because the BIA did not adopt this conclusion, but rather concluded that the due-diligence issue was dispositive, we need not review the IJ’s conclusion on this matter. Gonzalez, 820 F.3d at 403. Nevertheless, because the petitioners failed to show entitlement to equitable tolling, we need not consider the merits of their motion to reopen on ineffective assistance of counsel grounds. See Ruiz-Turcios v. U.S. Att’y Gen., 717 F.3d 847, 851 (11th Cir. 2013) (concluding that entitlement to equitable tolling must be satisfied before consideration of the merits of the claim underlying the motion to reopen). Upon review of the record and consideration of the parties’ briefs, we deny the petitioners’ petition. PETITION DENIED.

App. 6 U.S. Department of Justice Decision of the Board Executive Office for of Immigration Appeals Immigration Review Falls Church, Virginia 22041 Date: APR 12 2016 Files: A097 625 806 – Miami, FL A097 625 807 A097 625 808 A097 210 058 A097 210 059 In re: JUAN PEREZ-PABLO TOMASA CALMO-CARRILLO ROLANDO PEREZ-CALMO LEOVEL PEREZ-CALMO HERLINDA PEREZ-CALMO IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENTS: Emily Abraham, Esquire ON BEHALF OF DHS: APPLICATION:

Vera Hochberg Assistant Chief Counsel

Reopening

The respondents are natives and citizens of Guatemala. They timely appeal the Immigration Judge’s October 1, 2015, decision denying their motion to reopen. The Department of Homeland Security requests that the appeal be dismissed. The appeal will be dismissed.

App. 7 The Board reviews an Immigration Judge’s findings of fact for clear error. 8 C.F.R. § 1003.1(d)(3)(i). We review issues of law, discretion, or judgment de nova. 8 C.F.R. § 1003.1(d)(3)(ii). The Immigration Judge properly denied the respondents’ motion to reopen and rescind their in absentia orders of removal. The respondents did not appear for their individual hearing, and in absentia orders of removal were issued as to them on September 14, 2004. They concede that they had notice of the hearing, as well as timely notice of the in absentia orders of removal. They therefore had 180 days after issuance of the in absentia orders to file a motion to reopen based on exceptional circumstances. Sections 240(b)(5)(C) and (e)(1) of the Immigration and Nationality Act, 8 U.S.C. §§ 1229a(b)(5)(C) & (e)(1); 8 C.F.R. § 1003.23(b)(4)(ii). The respondents did not file their motion until September 25, 2015, over 11 years after issuance of the in absentia orders of removal. The Immigration Judge properly declined to equitably toll the time bar based on ineffective assistance of counsel. See Matter of Assaad, 23 I&N Dec. 553 (BIA 2003); Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff ’d, 857 F.2d 10 (1st Cir. 1988). The respondents have not demonstrated that they have been pursuing their rights diligently over the intervening 11 years. See Avila-Santoyo v. Atty Gen., 713 F.3d. 1357, 1363 n. 5 (11th Cir. 2013). They were aware of the in absentia orders of removal soon after issuance. While they feared removal as a result of their removal order, their

App. 8 fear is not an adequate excuse for not diligently pursuing their rights. They have not submitted sufficient evidence demonstrating that they consulted with other counsel or otherwise pursued their rights until they moved to California and obtained current counsel over a decade later. Contrary to the respondents’ arguments on appeal, we find no due process violations. The respondents’ counsel argues that her Notice of Entry of Appearance was not accepted when she filed the motion to reopen. However, we find no due process violation as the Immigration Judge considered the filed motion, and the respondents filed a timely Notice of Appeal from the Immigration Judge’s denial of reopening. The respondents raise a number of other arguments in their appellate brief. Since the question of due diligence is dispositive, we need not reach the other issues raised on appeal. Accordingly, the following order shall be issued. ORDER:

The appeal is dismissed. /s/ [Illegible] FOR THE BOARD

App. 9 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT MIAMI, FLORIDA IN RE: Juan PEREZ PABLO, Et Al A097 625 806 – Lead A097 625 807 and 808 A097 210 058 and 059 Emily Abraham Esquire 420 3rd St., Suite 130 Oakland, California 94607 ORDER

IN REMOVAL PROCEEDINGS

Benjamin Rosen, ICE Assistant Chief Counsel 333 S. Miami Ave., Suite 200 Miami, Florida 33130

MOTION TO REOPEN & VACATE IN ABSENTIA DECISION

ON

The court entered an in absentia order on September 14, 2004, when respondents each failed to appear for hearing after having been notified of the hearing by mail on May 19, 2004, at the address they provided in their asylum application received in April of 2004. The respondents file this motion over a decade later stating they sought out an individual about their pending case and whom they returned to see for an appointment days after they missed their hearing.1 Further, respondents have not established “due diligence” in 1

Respondents state that a hurricane hit their Florida community “on or about September 13, 2004.” 2004 was an active year for hurricanes and tropical storms in Florida, However, hurricane Charley hit August 13, 2004, along the west coast of Florida and

App. 10 pursuing their case having waited well over a decade to address this matter. See Matter of C-R-C, 24 I&N Dec. 677 (BIA 2008). Finally while respondents contend ineffective assistance of counsel in 2004 they have not complied with Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). Accordingly, the motion to reopen is DENIED. DONE and ORDERED in chambers this Thursday October 1, 2015. /s/ J. Daniel Dowell J. Daniel Dowell U.S. Immigration Judge cc: Assistant Chief Counsel, Mr. Rosen Counsel for Respondent, Ms. Abraham Respondents at 1372 53rd Ave. Oakland, California 94601 Mailed out 10/1/15

By: /s/ ZA

hurricane Frances hit Florida September 6 with strong winds near where respondents lived closing businesses for a few days. No significant storms hit south Florida in the weeks before the hearing.